Stuffed miniature mascots in cheerleading uniforms. Monthly calendars featuring cheerleaders. Clothing designed to mimic cheerleading uniforms. What do all of these have in common? They are sold in university gift shops and, under the Supreme Court’s latest decision on cheerleading uniforms, they are likely infringing works.

The US Supreme Court recently ruled that fashionable 2-D and 3-D aspects of clothing, traditionally considered functional, are copyrightable. Previously, an artist had to make an election to protect creative expression: to seek a limited duration monopoly with a design patent, or a copyright with a longer duration that did not cover functionality. However, the Supreme Court has indicated that now an artist can seek both a copyright for creative aspects and a design patent for functional aspects.

In reaching this decision, the Supreme Court relied upon Section 101’s protections for certain aspects of design where “such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Under this ruling, the designs on cheerleading uniforms can be copyrighted separate from the useful article of the cheerleading uniforms themselves.

One concept of intellectual property law is that usefulness is channeled toward patent protection, as the duration is shorter than copyright protection, thus providing a benefit to society much earlier. As designs on cheerleading uniforms have been viewed as functional – identifying the wearer as a member of a cheerleading squad for a particular team – it has been assumed that such designs were not copyrightable, but should instead receive protection in the form of a design patent.

The decision likely has serious implications for the sporting and fashion industries, as well as other utilitarian applications (e.g. industrial designs). But its effects could ultimately have the largest impact on smaller universities where their budgets are more limited.

Implicit within this decision is that all reproductions and derivative works of the cheerleading uniform designs would likely require a license. Manufacture and sales of toys, photos, clothing, etc. would require a license from the uniforms’ design copyright holder.